Article 123 of the Schedule to the Limitation Act, 1963 relates to applications filed to set aside a decree passed ex-parte, or to re-hear an appeal decreed or heard ex-parte. While the limitation prescribed in such cases is 30 days, the period of limitation is required to be computed from the date of the decree, or where the summons or notice was not duly served, from when the applicant had knowledge of the decree. As noted hereinabove, the notices sent to the appellant's address were returned unserved. Sri. S.K. Jain, learned Senior Counsel appearing on behalf of the appellant, would submit that the respondent had deliberately sent the notice to the wrong address in order to ensure that the appellant remained unaware of the suit, for divorce, having been filed. We are satisfied that, in the present case, service of notice through paper publication would not constitute due service in terms of Article 123 of the Limitation Act, as the appellant is a house wife without any independent source of livelihood, and is a daughter of petty vegetable vendor living in an interior part of the State of West Bengal. The court below should, therefore, have condoned the delay in filing the application under Order 9 Rule 13 CPC.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal from Order No. 502 of 2017
Decided On: 15.11.2018
Paromita Mondal Vs. Tarun Kumar Mondal
Hon'ble Judges/Coram:
Ramesh Ranganathan, C.J. and Alok Singh, J.
Citation: AIR 2019 UTTAR 37
